PROZAC ON TRIAL: `INVOLUNTARY INTOXICATION’? DEFENSE ATTORNEY IN MURDER CASE INTENDS TO PROVE ‘WONDER DRUG’ GUILTY — (Deseret News)

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Deseret News

Published: Sunday, March 24 1991 12:00 a.m. MST

Attorney Alan D. Boyack first heard about Prozac from an old fraternity buddy, a pharmaceutical salesman.
It was August 1990, and Boyack had just been appointed defense attorney in a first-degree murder case.Joseph Charles Gardner Jr., 32, was charged with the shooting death of his ex-wife’s best friend,Janice Fondren. Fondren, 30, was murdered on July 22, 1990. She was shot once, her body dragged to the des-ert, stripped and abandoned to rot in 110-degree days.

“I let it go right over my head and was pursuing an insanity case,” Boyack says. “I’d never heard of Prozac. I didn’t know what it was.”

A light-bulb-over-the-head moment struck the attorney while he was interviewing Gardner’s mother, Connie. Her son was extra depressed the day the tragedy occurred, she said. He took a double dose of Prozac, the anti-depressant pills prescribed by his doctor.

That’s when Boyack started thinking he had a case.

That’s when Boyack began building a defense: “involuntary intoxication.”

Months from now, when this case moves to the courtroom, Gardner won’t be alone on the stand. Boyack plans to put Prozac, a drug prescribed for more than 3 million people worldwide, on trial with him.

Boyack, 50, is a big man and a big talker who tells stories with the flair of a TV evangelist. He displays the green beret from his tour of duty in Vietnam on a bookcase in his St. George law office, evidence he loves a good fight.

He attended law school in Southern California, passed the bar in 1976 after 4 1/2 tries and pilots his own plane to his other office in Century City. A former Bountiful police officer, Boyack keeps a two-way radio mounted in his car. It connects him across the state border to the Mojave County, Ariz., sheriff’s office, where he moonlights as a coroner.

The defense hinges on Gardner’s spotless past. “His nature off the Prozac was sweetheart,” Boyack says.

Gardner is [not] the kind of accused killer Utahns are accustomed to: Eagle Scout, returned LDS missionary, former schoolteacher and licensed emergency medical technician. No record of violence, Boyack brags. “My guy is probably the premiere candidate for this defense.”

Boyack stacks up adjectives: quiet, reserved, introspective, articulate, educated, sincere.

“He was Clark Kent. Horn-rimmed glasses, the whole shot.”

A jury will consider these simple, loaded questions: Is Gardner responsible for a murder? Or is the culprit a mind-altering drug?

“The entire facts of `whodunit?’ will probably not be much of an issue in this case,” the lawyer says. “This case relies upon the mental status, the voluntariness of Mr. Gardner’s action.”

The Prozac story is important because while nobody knows how many Utahns take the capsule, everyone agrees it’s a surprisingly high number.

Boyack says even medical experts don’t know how Prozac alters the brain. “You can become a Ted Bundy by the drug when you’re really not.”

*****

JANICE ELAINE FONDREN, 30, moved to the sleepy retirement town of St. George in the fall of 1989 because she was afraid of the crime in Las Vegas.

A licensed nurse, she worked at the St. George Care Center. A year later she was promoted to head of the nursing staff.

The former cheerleader was a Southern belle who loved plants, sun bathing, yellow roses and a cat named “Rambo.” She stayed close to her family, calling back home to Moncks Corner, S.C., four or five times a week. “She’d be in the middle of cooking something, and she’d pick up the phone and ask me how to do it,” says her mother, Betty Jo Fondren.

Fondren was bright and dedicated to her job, according to her boss, Carolyn Stuercke, center administrator. She had a special touch with nursing home patients. “A very private lady, not a person who talked about `me, me, me.’ She was cute, had an infectious smile, and she was always, always, always smiling.”

Fondren became friends with Nancy Snow, who worked as a receptionist at the care center. Fondren consoled Snow through her brief but troubled marriage to J.C. Gardner, mothering her after the divorce.

Fondren practically bounced when she walked. “I’d sit here in the morning and watch,” Stuercke says, gazing out her office window to the parking lot. “She’d get out of the car, and it was almost like she’d skip into the building.”

On the Friday before she was murdered, Fondren got permission to leave work early for a party, says Terrill Clove, assistant administrator of the center.”She just bounced across the parking lot and that was the end of her.”

*****

THIS IS WHAT we know: Janice Fondren was shot once in the chest.

Police found blood stains on the carpet of her apartment, on the door and on the front porch. They found a bullet hole in the front window, a 9mm shell casing on the kitchen floor. Her kitchen window was open, the screen removed, and a footprint of a man’s tennis shoe impressed in the dirt outside. Blackbrush clung underneath her car.

Nancy Snow reported her friend Janice Fondren missing July 22 and reported to police her suspicions that her ex-husband was involved.

Police searched Gardner’s house and found two sets of rubber gloves in the trash, and a folding shovel.

Three days later, police discovered a naked woman’s body decaying in the desert 22 miles west of St. George. Blackbrush grows there, on a deserted stretch of the Shivwits Indian Reservation. The dead woman was lying on her back, her feet apart, hands over her head. Also found at the site were two blankets, pink pajamas, underwear and a beer can.

“The only thing she did wrong,” says Stuercke, Fondren’s boss, “was to be a friend to another person.”

*****

JOSEPH CHARLES GARDNER Jr., the only boy in a family of three, grew up in Nevada. The family hunted and fished together, and J.C., the youngest, was close to his father. “When he was growing up, his favorite book was Webster’s Dictionary,” says his mother, Connie Gardner.

J.C. has a kind heart, and as a child he didn’t like to see a playmate’s feelings hurt, she says. “When he got older, a lot of people brought their problems to him. He could see things, things that weren’t obvious to everyone else. He could see how things fit together.”

Gardner served an LDS mission to Switzerland. He graduated from Southern Utah State College, with a degree in zoology.

He taught junior high science for six months during 1983-84. He worked as a deputy with the Mojave, Ariz., county sheriff’s office for two months in 1986.

His employment record appears sketchy. Boyack, his attorney, says a recurring throat infection interfered.

The Gardners moved to St. George in 1987. J.C. lived with his folks, helping care for his sick father. And he worked 10 hours a week as a home health aide. “His patients loved him,” says his former boss, Mary McDonald. “J.C. seemed very stable, very sure of himself, very capable of doing the job we had for him. He always had a smile on his face. I don’t think he ever came into the office grumpy.”

Gardner became depressed, his mother says, after his father died. His doctor started treating him with Prozac in November 1988. He attempted suicide twice in 1989. The first time, before swallowing the pills, he wrote Connie Gardner a note. Then he called his bishop, asking him to come over because his mother would need him.

Connie Gardner says she should have noticed how the drug affected her son. He suffered insomnia, headaches, mood changes. He fidgeted. “He just wasn’t J.C.,” when he was on Prozac.

J.C. Gardner met Nancy Snow at an LDS singles party in October 1988. His relationship with the older, twice-divorced woman was sporadic.

Gardner sent bouquets of roses to Snow and frequented the nursing home where she worked. Snow downplayed the frequent flowers and claimed Gardner was “smothering” her, says Terrill Clove, assistant administrator of the center.

Snow didn’t confide in co-workers about her marriage plans but just came to work one Monday in April 1989 with Gardner as her new last name.

From the start, the marriage had its problems, Connie Gardner says. “He wanted to make it work, and off and on, she did. It was like a continual yo-yo.” Snow called her mother-in-law several times to take credit for the couple’s marital problems. “She just didn’t want to be married anymore.”

Snow left Gardner three weeks after the wedding. She started divorce proceedings in June, filing a restraining order against him.

For a year afterward, Gardner continued to haunt his ex-wife, at home and at work, her bosses say.

“He was here a lot,” Clove says. “She became like a little rabbit. She was more like a possession he owned.”

Snow confided in her friend and co-worker, Janice Fondren. Fondren nurtured Snow after the divorce, urging her to stand up to her ex-husband. Days before Fondren died, witnesses at a St. George bar heard her shout at Gardner, telling him to leave her friend alone.

Gardner wouldn’t accept that his marriage was over. He wanted to get back together with Nancy Snow. He was obsessed with her, his lawyer says. And Snow fueled that by continuing to send Gardner love letters.

J.C. GARDNER HAS BEEN at the Utah State Hospital since September. In February, the state’s forensic psychiatrist ruled Gardner incompetent to stand trial. The doctors are evaluating the effects of Prozac on Gardner’s brain and when he will be mentally able to face capital homicide charges.

“They found my client funny at the funny farm,” is how Boyack terms it.

Psychiatrists monitor Gardner both on and off Prozac. Boyack says he can tell the difference from the legibility of his writing and the trembling in his right arm. Restlessness and quivering are symptoms of reactions to certain drugs, including Prozac.

Prosecutor W. Brent Langston, Washington County deputy attorney, agrees the Prozac defense will be the issue. “As I see it now, it will probably come down to a battle of the experts on this thing.”

Langston says the Gardner case will be argued on its merits. He won’t comment on a motive. But Gardner was first arrested on criminal trespassing and telephone harassment charges, which were dropped when the murder charge was filed.

Langston stays in touch with Fondren’s family in South Carolina. The family subscribes to the St. George newspaper to track the case. They’re frustrated that the wheels of justice crank so slowly. They’re afraid their daughter’s murder will be forgotten.

Boyack says he isn’t worried about Gardner’s mental state. In his opinion, anybody facing the death penalty for murder earns the right to depression.

Truth is, the longer his client stays at the state hospital, the better. It buys Boyack time, time to build a case. Against Prozac.

THIS IS WHAT we know: Prozac increases serotonin, a neurotransmitter, or chemical, in the brain. People with depression lack some of these essential brain juices.

But studying the brain isn’t an exact science. Medical experts don’t really understand how the mind works, what plunges some people into deep pools of depression and what rescues them. Drug treatment is tricky, as every patient reacts differently.

So treatment of depression remains a chronic problem. Physicians often hear vague complaints about insomnia, moodiness, fatigue or lassitude. Blood tests return normal results, yet patients are in pain. A quick pill can become a doctor’s quick fix.

Estimates of how many Americans suffer from depression range from 6 percent to 14 percent of the population. Double that, according to one recent medical study that says general practitioners don’t pick up on the clues of depression about half the time.

Hailed as a breakthrough for treatment of depression, Prozac was first marketed by Eli Lilly and Co. in December 1987.

General practitioners and psychiatrists prescribed it readily. Like other anti-depressants, Prozac helps only 60 percent to 70 percent of patients, experts say.

The drug is “activating” – giving patients more energy – with few of the side effects of earlier drugs. Some patients who don’t respond to other anti-depressants respond to Prozac.

“It’s effective because it’s biochemically different in its actions,” says Dr. Fred Reimherr, director of the University of Utah Medical Center’s Mood Disorders Clinic.

Eli Lilly spokesman Ed West says clinical trials for Prozac were among the largest ever. Reimherr, who tested the drug before it was approved, says the company’s tests were far more extensive than the Federal Drug Administration required.

West says the explosive demand for the drug makes a statement. “You don’t see physicians prescribing something over 3 million times when that something doesn’t work,” he said.

No agency tracks how many Utahns take Prozac, but one Salt Lake health expert says the drug is so common here it should be considered one of the four food groups.

A small percentage of Prozac patients – some peg it at 16 percent – suffer mild side effects such as anxiety, headaches, nausea and insomnia.

But a paper published in the American Journal of Psychiatry in February 1989 started a furor over the medication’s downside. Harvard professor Dr. Martin Teicher’s study detailed six patients, four of whom were also taking other drugs along with Prozac. The article states Prozac might cause acceleration of “intense, violent suicidal thoughts” in about 3.5 percent of users.

Since then, some people have labeled the “wonder drug” a suicide pill.

West, of the drug company, says a few opponents are attacking Prozac. “There aren’t a lot of critics. There are some very vocal critics.” He says the Church of Scientology and their Citizens Commission on Human Rights, a group opposed to psychiatric medicine, has linked suicide and Prozac in the media. And lawyers making sensational statements are drumming up business.

“Essentially, Prozac is merely a lightning rod for those folks at this time,” West says. “There will be other lightning rods.” Those who suffer from mental illness, however, are especially vulnerable to the clamor.

Reimherr, at the U., has seen generally positive results from 1,000 Prozac patients. He hasn’t witnessed the horror stories. “I just haven’t seen it. I’ve seen people who have gotten a little bit worse, but then I’ve just taken them off the medication.”

Prozac may be overprescribed, and doctors may need to monitor users more carefully. The standard 20 milligram dose may be too high for some people. Reimherr warns it shouldn’t be combined unknowingly with other drugs or alcohol.

“But I certainly don’t think the drug should be removed from the market,” he says. “You couldn’t remove it without creating a huge, huge importation of Prozac.”

Stepchild of the insanity defense

Basically a stepchild of the insanity defense, the Prozac defense asserts that a person wasn’t in control of his actions due to chemical substances.

– “Involuntary intoxication” defense has worked successfully once in Utah. In a 1989 landmark ruling, 5th District Judge J. Philip Eves dismissed a murder charge against Ilo Marie Grundberg, who shot her 83-year-old mother eight times while under the influence of Halcion, a popular sleeping pill. Grundberg is now suing Upjohn, the drug company.

– About a dozen “Prozac defense” criminal trials are pending, in St. George, Utah; Susanville, Calif.; Florida; and Long Island, N.Y. Judges in California and Illinois have agreed to allow evidence regarding Prozac in criminal trials.

– In addition, Eli Lilly and Co., which markets Prozac, has been named in more than 50 civil suits, alleging the drug causes out-of-character suicidal or violent actions. Defendants contend the company didn’t do enough tests before marketing the drug.

– “As a defense lawyer, I don’t have to prove that Prozac caused the murder. I just have to raise a reasonable doubt that my client acted voluntarily and that without the drug the violence would not have occurred.” – St. George attorney Alan D. Boyack, who is defending J.C. Gardner, charged with capital homicide.

– “If this is going to be a valid legal defense, it has to be medically proven.” – Linda Chilstrom, a deputy district attorney in Los Angeles. Chilstrom successfully prosecuted Mildred Johnson, 74, for voluntary manslaughter in the shooting death of her husband. Johnson was on Prozac at the time of the murder, and her attorney intends to file an appeal.

 

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LIFE SENTENCE GIVEN IN PROZAC MURDER CASE — (Deseret News)

Published: Wednesday, Jan. 15 1992 12:00 a.m. MST 

A man who claimed his use of the anti-depressant drug Prozac caused him to kill his ex-wife’s best friend has pleaded guilty to murder.Joseph Charles Gardner, 33, had been charged with first-degree murder in the July 1990 death of Janice Fondren. He entered the plea Friday in 5th District Court, where Judge Philip Eves immediately sentenced him to life at Utah State Prison.

Washington County Attorney Eric Ludlow said Tuesday that as part of a plea agreement, prosecutors dropped one count of first-degree felony aggravated burglary and will not seek the death penalty.

Defense attorney Alan Boyack said he will immediately appeal to the Utah Supreme Court. He had based Gardner’s defense on his use of Prozac – a popular anti-depressant that is prescribed to an estimated 3.5 million people worldwide.

Boyack contends it was wrong for the Utah Legislature to eliminate an “irresistible impulse” clause from the state’s murder statute in 1983, and he will make that argument with the higher court.

Boyack had said Prozac “involuntarily intoxicated” Gardner and caused him to kill Fondren. Her body was found in the southern Utah desert after Nancy Snow, Gardner’s former wife, told police Fondren was missing and that she suspected her former husband.

The two women worked at a St. George nursing home where Fondren was the nursing director and Snow a receptionist.

Police found bloodstains on the carpet of Fondren’s apartment, on the door and on the front porch. They found a bullet hole in the front window and a 9mm shell casing on the kitchen floor.

The kitchen window was open, the screen removed and a footprint of a man’s tennis shoe was impressed in the dirt outside.

Before her death, Fondren had filed a complaint with the St. George Police Department claiming Gardner was harassing her and trespassing.

Police found Fondren’s body shortly after Gardner was arrested July 25, 1990.

 

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State v. Gardner :: 1993 :: Utah Supreme Court Decisions — (Justia)

STATE of Utah, Plaintiff and Appellee, v. Joseph Charles GARDNER, Jr., Defendant and Appellant.

No. 920104.

Supreme Court of Utah.

December 3, 1993.

R. Paul Van Dam, Atty. Gen., Creighton C. Horton, II, Asst. Atty. Gen., Salt Lake City, for plaintiff.

Alan D. Boyack, St. George, for defendant.

HALL, Chief Justice:

Defendant Joseph Charles Gardner, Jr., appeals from an interlocutory order of the Fifth Judicial District Court determining that the defense of involuntary intoxication falls within the defenses for legal insanity or diminished mental capacity in Utah’s statutory scheme. We affirm the trial court’s decision.

On July 25, 1990, defendant was charged with murder in the first degree, a capital offense,[1] in connection with the shooting death of Janice Fondren. Defendant was also charged with aggravated burglary, a first degree felony.[2] He originally pleaded not guilty and not guilty by reason of insanity.

During the course of pretrial discovery, defendant represented to the prosecution that he would raise the defense of involuntary intoxication. That claim was based on his ingestion of the prescription drug Prozac, which allegedly caused him to suffer temporary insanity at the time of the offense.

In response to defendant’s plea of not guilty by reason of insanity, the prosecution filed a pretrial motion to have the trial court determine the legal standard for the defense of involuntary intoxication. The prosecution argued that the correct standard for involuntary intoxication is the same as that for the defense of mental illness located at Utah Code Ann. § 76-2-305.[3] In his responsive *901 memorandum, defendant argued that involuntary intoxication is not covered specifically under section 76-2-305 and that therefore a different standard should apply. That standard, defendant claimed, should be the same or similar to the arguably more lenient one existing prior to the amendment of section 76-2-305 in 1983[4] and still existing in part in the state of Colorado.

The trial court rejected this argument and concluded that involuntary intoxication that leads to “temporary mental illness” falls under the provisions of section 76-2-305. That section, the trial court noted, is the only Utah statute dealing with the defense of mental illness on the basis of insanity or diminished mental capacity. The trial court stated that if defendant could meet the criteria for a mental illness defense under that section, he would be deemed as lacking the necessary mens rea and would be adjudged not guilty.

After receiving the trial court’s ruling, defendant entered a conditional plea of guilty to the crime of murder in the first degree. That plea was conditioned on his right to appeal the trial court’s decision. In exchange for the plea, the prosecution agreed to drop the aggravated burglary charge and not seek the death penalty.

The sole issue on appeal is whether the trial court correctly determined that the legal standard applicable to the defense of involuntary intoxication is incorporated within the mental illness defense in Utah Code Ann. § 76-2-305. Because the trial court’s determination was a conclusion of law, we accord it no deference but review it for correctness.[5]

Defendant argues that because the term “involuntary intoxication” does not appear in section 76-2-305, that section does not contemplate such a defense. Instead, defendant suggests that we adopt the standard for involuntary intoxication recognized in Colorado. Colorado Revised Statutes subsection 18-1-804(3) provides in pertinent part:

A person is not criminally responsible for his conduct if, by reason of intoxication that is not self-induced at the time he acts, he lacks capacity to conform his conduct to the requirements of the law.[6]Colorado’s standard for the defense of involuntary intoxication is, in part, the same as the insanity standard used in Utah prior to the 1983 amendment to section 76-2-305.[7] Evidently, defendant seeks to have his actions judged either by the Colorado standard or by the prior Utah standard because he believes those tests would be easier for him to prove at trial. For the reasons set forth below, we decline to adopt his position.

Unlike Colorado, the Utah legislature has not adopted a separate statutory *902 provision dealing with the defense of involuntary intoxication. That does not mean, however, that we should go beyond the existing statutory provision dealing with mental illness and judicially adopt a standard similar to the one previously abandoned by our legislature in 1983. Involuntary intoxication fits easily within the framework of the revised section 76-2-305: If a defendant can prove that he or she was temporarily so intoxicated during a crime due to the involuntary[8] ingestion of drugs that he or she lacked the culpable mental state necessary for the crime, the statute will govern and the defendant will be acquitted.

There is no dearth of authority from other jurisdictions holding that the standard for involuntary intoxication is the same as that for insanity. As the Michigan Court of Appeals stated in a case involving a murder that took place after the defendant ingested excessive amounts of the drug Halcion,

[T]he defense of involuntary intoxication is part of the defense of insanity when the chemical effects of drugs or alcohol render the defendant temporarily insane. As in any case in which the defendant interposes an insanity defense, it remains incumbent upon the defendant to demonstrate that the involuntary use of drugs created a state of mind equivalent to insanity.[9]We think the rationale of People v. Caulley applies equally to this case. There, the court found that to establish a defense of involuntary intoxication, a defendant must show that he or she was legally insane under the standard adopted for mental illness in that state. Similarly, we find that the trial court correctly determined that a claim of involuntary intoxication falls under the mental illness standard in section 76-2-305.

The judgment is affirmed.

HOWE, Associate C.J., and STEWART, DURHAM and ZIMMERMAN, JJ., concur.

NOTES[1] See Utah Code Ann. § 76-5-202.

[2] See Utah Code Ann. § 76-6-203.

[3] Section 76-2-305 states:

(1) It is a defense to a prosecution under any statute or ordinance that the defendant, as a result of mental illness, lacked the mental state required as an element of the offense charged. Mental illness is not otherwise a defense.

(2) The defense defined in this section includes the defenses known as “insanity” and “diminished mental capacity.”

(3) A person who is under the influence of voluntarily consumed or injected alcohol, controlled substances, or volatile substances at the time of the alleged offense is not excused from criminal responsibility on the basis of mental illness.

(4) “Mental illness” means a mental disease or defect that substantially impairs a person’s mental, emotional, or behavioral functioning. A mental defect may be a congenital condition, the result of injury, or a residual effect of a physical or mental disease and includes, but is not limited to, mental retardation. Mental illness does not mean a personality or character disorder or abnormality manifested only by repeated criminal conduct.

(Emphasis added.)

[4] Prior to its amendment in 1983, section 76-2-305 read as follows:

(1) In any prosecution for an offense, it shall be a defense that the defendant, at the time of the proscribed conduct, as a result of mental disease or defect, lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

(2) As used in this section, the terms “mental disease” or “defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

(Emphasis added.)

[5] Ong Int’l (U.S.A.) Inc. v. 11th Ave. Corp., 850 P.2d 447, 452 (Utah 1993); Eskelsen v. Town of Perry, 819 P.2d 770, 771 (Utah 1991).

[6] Colo.Rev.Stat. § 18-1-804(3) (1986).

[7] See supra note 4. The Colorado statute and the old version of Utah Code Ann. § 76-2-305 encompass what is known as the “irresistible impulse test,” in which a defendant must show that he or she lacked the capacity to conform his or her conduct to the law’s requirements.

[8] In this case, “involuntary” refers to intoxication resulting from medicine that was prescribed or administered by a physician. It may also include intoxication “occasioned by the fraud, artifice, contrivance, or force of another.” Phillip E. Hassman, Annotation, When Intoxication Deemed Involuntary So As To Constitute a Defense To Criminal Charge, 73 A.L.R.3d 195, 210 (1976) [hereinafter Hassman].

[9] People v. Caulley, 197 Mich.App. 177, 494 N.W.2d 853, 858 (1992), appeal denied, 502 N.W.2d 39 (Mich.1993) (citing People v. Wilkins, 184 Mich.App. 443, 459 N.W.2d 57, 59-60 (1990)); see also United States v. F.D.L., 836 F.2d 1113, 1116 (8th Cir.1988); United States v. Henderson, 680 F.2d 659, 661 (9th Cir.1982) (applying insanity standard to situation involving involuntary intoxication); City of Minneapolis v. Altimus, 306 Minn. 462, 238 N.W.2d 851, 857 (1976); Wooldridge v. State, 801 P.2d 729, 734 (Okla.Crim.App.1990) (citing Jones v. State, 648 P.2d 1251, 1258 (Okla.Crim.App.1982)). See generally Hassman at 204.